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IN THE SUPREME COURT OF CANADA IN THE MATTER OF Section 53 of the Supreme Court Act, R.S.C. 1985, c.S-26; AND IN THE MATTER OF a Reference by the Governor in Council concerning reform of the Senate, as set out in Order in Council P. C. 2013-70, dated February 1, 2013
FACTUM ATTORNEY GENERAL OF NEWFOUNDLAND AND LABRADOR
(Pursuant to Rule 46 of the Rules of the Supreme Court of Canada)
Barbara G. Barrowmau Philip Osborne Department of Justice Newfoundland and Labrador P.O. Box 8700 St. John's, NL AlB 4J6 Tel.: 709 729-0448/ 729-0873 Fax: 709 729-2129 email@example.com firstname.lastname@example.org Counsel for the Attorney General of Newfoundland and Labrador
Robert E. Houston, Q.C. Burke-Robertson 441 Maclaren St., Suite 200 Ottawa, ON K2P 2H3
Tel: (613) 566-2058 Fax: (613) 235-4430 email@example.com
Agent for the Attorney General of Newfoundlaud and Labrador
ORIGINAL TO: TO:
THE REGISTRAR Robert J. Frater Christopher M. Rupar Warren J. Newman WilliamY. Pentney Deputy Attorney General of Canada Department of Justice Canada 234 rue Wellington Street, East Tower, Room 1161 Ottawa, Ontatio KIA OH8 Tel: (613) 957-4763 Fax: (613) 954-1920 robert firstname.lastname@example.org Counsel for the Attorney General of Canada
Burke-Robertson Barristers and Solicitors 441 MacLaren St., Suite 200 Ottawa, Ontario K2P 2H3 Per: Robert E. Houston, Q.C. Tel: (613) 566-2058 Fax: (613) 235-4430 Email: email@example.com Agents for the Attorneys General of British Columbia and Ontario
Gowling Lafleur Henderson LLP 2600 - 160 Elgin Street Ottawa, Ontario KIP lC3 Per: Henry S. Brown, Q.C.lBrian A. Crane, Q.c. Tel: (613) 786-0139/(613) 786-0107 Fax: (613) 563-9869/(613) 788-3500 Email: firstname.lastname@example.orgBrian.Crane@gowlings.com Agents for the Attorneys General of Alberta, Saskatchewan, Manitoba, New Brunswick, Prince Edward Island, Nova Scotia, and the Minister of Justice for Northwest Territories, and Nunavut
Noel & Associes
111, rue Champlain Gatineau, QC J8X 3Rl Per: Pierre Landry Tel: (819) 771-7393 Fax: (819)771-5397
Email: email@example.com Agent for the Attorney General of Quebec TO: Daniel Jutras University of McGill 3644 Peel Montreal, Quebec H3A 1W9 Tel: (514) 398-6604 Fax: (514) 398-4659 Email: danieJ.firstname.lastname@example.org Amicus curiae TO: Supreme Advocacy LLP 397 Gladstone Avenue, Suite 1 Ottawa, Ontario K2P OY9 Per: Marie-France Major Tel: (613) 695-8855 ext: 102 Fax: (613) 695-8580 Email: email@example.com Agent for Amicus curiae, Jolm Hunter, Q.C. TO: The Honorable Serge Joyal, Senator, P. C. 250 East Block, Parliament of Canada Ottawa, Ontario KIA OA4 Tel: (613) 943-0434 Fax: (613) 943-0441 Email: firstname.lastname@example.orgJ.gc.ca Intervener
Heenan Blaikie LLP 300 - 55 Metcalfe Street Ottawa, Ontario KIP 6L5 Per: Mark C. Power Jennifer Klinck Perri Ravon Sebastien Grammond, Ad.E. Tel: (613) 236-7908 Fax: (866) 296-8395 Email: email@example.com Counsel for the Intervener,
Federation des communautes francophones et acadiennes du Canada TO:
Heenan Blaikie LLP
300 - 55 Metcalfe Street Ottawa, Ontario KIP 6L5
Per: Perri Ravon
Tel: (613) 236-8071 Fax: (613) 236-9632 Email: firstname.lastname@example.org Agent for the Intervener. Societe de I' Acadie du Nouveau-Brunswick Inc. TO:
Stikeman Elliott LLP
1600 - 50 O'Connor Street Ottawa, Ontario KIP 6L2
Per: Nicholas Peter McHaffie
Tel: (613) 566-0546 Fax: (613) 230-8877 Email: email@example.com Agent for the Intervener, Anne C. Cools, Senator
TABLE OF CONTENTS Page PART I-OVERVIEW AND FACTS ................................................................... 1
Overview ............................................................................................... 1
II. Facts .................................................................................................... 2 PART II - ISSUES ........................................................................................... 3 PART HI - ARGUMENT .................................................................................. .4
Introduction ........................................................................................... .4
II. Interpretive Approach ................................................................................ 5
III. The Continued Relevance of the Upper House Reference .... .................................. 5 IV. Response to the Reference Questions .............................................................. 8 A. Elections (Reference Questions 2 and 3) ................................................... 8 (i) Purpose and Effects of the Draft Legislation ........................................ 8 (ii) Purpose to transfonn the Senate into an elected body.............................. 9 (iii) Proposals would fundamentally change process of selecting Senators ........ 12 (iv) "the method of selecting Senators" in s. 42(1 )(b) ................................. 15 (v) The federal bills are not authorized under s. 91 ("POGG") ...................... 18 B. Tenn Limits (Reference Question I) .................................................... .19 (i) Tenn limit proposals are interrelated with Senate election proposals ........... 19 (ii) Changes to tenn length could impair the powers of the Senate ................. 20 (iii) Renewable Tenns (Reference Question l.(e» .................................... 21 C. Abolition ofthe Senate (Reference Questions 5 and 6) ............................... 22 (i) Creation of the Senate was essential to Confederation ........................... 24 (ii) The Structure of the Constitution, the Amending Provisions and the Unwritten Constitutional Principles ................................................. 27 (iii) Constitutionalism ...................................................................... 29 (iv) Federalism .............................................................................. 29 (v) Section 38(1) not the appropriate procedure ....................................... .31 (vi) Section 41(e): Abolition of the Senate would require amendment to Part V of the Constitution Act, 1982 .............................................. 31
PART IV - COSTS ......................................................................................... 35
PART V - ORDER SOUGHT ........................................................................... 35
PART VI - TABLE OF AUTHORITIES ............................................................. 36 PART vn - LEGISLATION ............................................................................ .37 APPENDIX A ................................................................................................ 38
PART I - OVERVIEW AND FACTS I. Overview
1. This Reference is about the constitutionally required process to make significant changes to, or to abolish, the Senate of Canada. It is not about whether an elected Senate or shortened term limits are desirable, or about whether the Senate should be abolished. Rather, it is about whether such changes could be effected unilaterally by Parliament without any requirement for provincial involvement, or whether they would engage either the "7/50" amending procedure or the unanimous consent requirement set out in of Part V of the Constitution Act. 1982.
2. The Senate of Canada is a constitutionally entrenched national institution which was born out of the essential compact that gave rise to Confederation. Senate reform is fundamentally constitutional in nature and can only be accomplished in accordance with the constitutional amending procedures.
3. The proposals contained in Reference Questions 1,2 and 3 to introduce Senate elections and to change the term length of Senators would fundamentally change the Senate as we know it and would constitute amendments in relation to "the powers of the Senate and the method of selecting Senators". Such changes could only be effected pursuant to the "7/50" amending procedure provided for by s. 42(1) and 38(1) of the Constitution Act, 1982.
4. Abolition of the Senate wonld be a profound change to Canada's constitutional structure. It would remove one of the foundational pillars upon which the Canadian union was built. The Senate's role, as conceived, is integral not only to the federal legislative process, but also to the constitutional amending processes. The provisions of Part V, interpreted by reference to the structure of the Constitution as a whole, including the foundational unwritten constitutional principles, compel the conclusion that abolition could only be effected pursuant to the unanimous consent procedure in s. 41.
5. By Order in Council P.C. 20l3-070, dated February I, 2013, the Governor in Council
referred several questions to this Court for its hearing and consideration pursuant to s. 53 of the Supreme Court Act. Those questions are found in Appendix A.
PART II - ISSUES 6. The questions referred to this Court by the Governor General in Council pursuant to Order in Council P.C. 2013-70 are found in Appendix A. The questions address four topics: tenn limits for Senators; the introduction of elections into the process for selecting Senators; repealing the property qualifications for Senators; and abolition of the Senate.
7. The Attorney General of Newfoundland and Labrador takes no position on the issue of
property qualifications (Question 4). With respect to the other questions, the answers of the Attorney General of Newfoundland and Labrador can be summarized as follows:
Senate Elections (Reference Questions 2 and 3):
8. Questions 2 and 3 should be answered "No". The proposals referenced in these questions fall outside the exclusive legislative authority of Parliament under either s. 91 of the Constitution
Act, 1867 or s. 44 of the Constitution Act, 1982. These proposals would fundamentally alter
the method of selecting Senators, a matter reserved for the "7/50" constitutional amending procedure pursuant to s. 42(1)(b) and 38(1).
Term Limits (Reference Question 1):
9. Question 1 (all parts) should be answered "No". The proposals to set tenn limits should not be considered in isolation from the proposed Senate elections, as the two are linked. The tenn limit proposals would work together with the election proposals to alter the method of selecting Senators. Moreover, aspects of the tenn limit proposals have the potential to affect the powers of the Senate. Thus these proposals would engage the "7/50" amending procedure in s. 38(1).
Abolition (Reference Questions 5 and 6):
10. Question 5 (all parts) should be answered ''No''. Question 6 should be answered "Yes". The correct procedure for abolition is the unanimous consent procedure of s. 41. The "7/50" procedure in s. 38 is not sufficient. None of the methods proposed pursuant to s. 38 would be constitutionally pennissible.
PART HI - ARGUMENT
11. This reference is about the constitutionally required procedures for potential changes to the Senate. Contrary to the assertion of the Attorney General of Canada, however, it is not about procedures applicable to "relatively modest" proposals. Rather, it is about how fundamental changes could be made to the Senate, which was designed as one of Canada's national institutions and was one of the essential components of the compact that led to Confederation. It is about whether the Provinces, partners in that essential Confederation compact, would have any say in changes of such significance to the nation as a whole. And it is about the nature and scope of the amending procedures themselves, which were designed to reflect and protect the federal constitutional partnership that is Canada.
12. The choices that are made about a national institution such as the Senate are fundamental choices about how Canadian society represents itself through sovereign government. They will have long-lasting effects on the way Canadian society is governed and on the operation of the Federation. Any such changes should be the product of careful, thorough consideration and fulsome consultation between both constitutional orders of government, culminating in the achievement of the constitutionally required level of consensus.
13. The thresholds for changing the Constitution are high, but this is by design. The Constitution sets the basic rules that frame our democracy, and should not be easy to change. The fact that constitutional change can be a lengthy, complex, and arduous process is not a justification to allow such changes to be effected in a manner that avoids these rigorous standards.
14. In the Manitoba Language Rights Reference, this Court held: The Court cannot take a narrow and literal approach to constitutional interpretation. The jurisprudence of the Court evidences a willingness to supplement textual analysis with historical, contextual and purposive interpretation in order to ascertain the intent of the makers of our Constitution.! 15. This direction applies with equal force to the exerCIse of interpreting and applying the amending provisions in Part V of the Constitution Act, 1982.
16. The amending procedures lie at the heart of the Constitution. They demand an equally robust and comprehensive interpretative approach as applies to other elements of the Constitution. Narrow formalistic interpretation has no place. The provisions of Part V should be interpreted by reference to the structure of the Constitution as a whole, including the unwritten constitutional principles which form an essential part of our constitutional structure. 2 Textual analysis should be integrated with contextual and purposive interpretation.
17. The text of Part V should be interpreted in light of the context leading to its enactment. This Court has consistently emphasized the importance of a contextual approach to the analysis of significant constitutional issues. 3
The Continued Relevance of the Upper House Reference
18. In 1978, the Governor in COlmcil referred a series of questions to this Court for its opinion as to whether Parliament could enact legislation lffider the authority of s. 91(1) of the
Constitution Act, 1867 to abolish or effect certain reforms to the Senate. In its December 21,
IRe: Manitoba Language Rights, 1 S.C.R. 721 at p. 751, AGNL Authorities, Tab 3 Reference re Secession of Quebec,  2 S.C.R. 217 ("Secession Reference") at para. 50-51, AGNL Authorities, Tab 6 3 See, for exarup1e, R. v. Big M Drug Mart, 1 S.C.R. 295 at p. 344, AGC Authorities, Tab 15; Secession Reference at para. 34, AGNL Authorities, Tab 6
1979 opinion in Re Authority of Parliament in Relation to the Upper House (the "Upper
House Reference"),4 the Court devoted considerable attention to the historical background
that lead to the creation of the Senate. The Court concluded, based on this historical review and an analysis of the key constitutional provisions concerning the Senate, that a primary purpose of the creation of the Senate was to afford protection for the various sectional and regional interests in Canada in relation to the enactment of federal legislation and that this role of the Senate was "vital".5
19. The Court concluded that under s. 91(1) it was not open to Parliament to abolish the Senate or "to make alternations which would affect the fundamental features or essential characteristics given to the Senate as a means of ensuring regional and provincial representation in the federal legislative process.,,6
20. The Upper House Reference was decided in 1979. The Constitution was patriated in 1982, at which time the amending provisions in Part V of the Constitution Act, 1982 were adopted and s. 91(1) was repealed. However, this sequence of events in no way calls into question this Court's characterization of the Senate's genesis or intended role in Canada's constitutional structure and federal system of government.
21. Moreover, the legislative history leading up to the adoption of Part V of the Constitution Act, 1982 and s. 44 in particular, do not support the contention that s. 44 was intended to enlarge the legislative powers of Parliament beyond those contained in s. 91(1).
22. Section 44 states:
44. Subject to sections 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and the House of Cornmons.
1 S.C.R. 54, AGNL Authorities, Tab 2 Ibid. at pp. 66, 67 6 Ibid. atpp.75, 78
23. The intention ofs. 44 was explained to the 1981 Special Joint Committee on the Constitution by then Minister of Justice, Jean Chretien. The Honourable Jake Epp, a member of that committee, expressed concern about the powers to amend the Senate that were provided to Parliament under (what would become) s. 44. Epp proposed an amendment to remove the words "the Senate" from the clause "in relation to the executive government of Canada or the Senate and House of Commons", asserting that "[tJhis amendment would assure that the role and scope of the Senate could not be changed simply through the House or a federal initiative". However, Minister Chretien indicated that it was necessary for Parliament to be able to address "internal" matters related to the Senate, such as quorum. This explanation and the example put forward by Minister Chretien make it clear that s. 44 was not intended to capture the type of fundamental features of the Senate identified by this Court in the Upper House Reference. 7
24. That Parliament's authority under s. 44 is subject to limitations beyond those explicitly provided for in ss. 41 and 42 is also supported by the fact that a number of critical matters are not specifically referenced in s. 41 or 42. For example, s. 91(1) explicitly provided that Parliament did not have the authority to amend the Constitution in relation to the requirement that there must be a federal election every five years. This requirement is now found in s. 4 of the Charter. It is not listed anywhere in the amending provisions of Part V of the Constitution Act, 1982. An amendment to this requirement would arguably be "in relation to ... the House of Commons", yet surely, it cannot be that Parliament has the authority, pursuant to s. 44, to unilaterally enact an amendment to do away with that five year limit. 8
Minutes ofProceedings and Evidence ofthe Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, Issue 53, February 4, 1981, p. 50, AGQC Record, Vol. I, Tab 6. See also: Submission of Jobn P. McEvoy on Bill S-4 (March 22,2007), AGC Record, Vol. XIII, Tab 77; Don Desserud, "An expert opinion of Bill C-7: An Act respecting the selection of Senators and amending the Constitution Act, 1867 in respect of Senate Term Limits (December 2012) atpp. 53-54, AGQC Record, Tab 37 8 See: Andrew Heard," An expert opinion of Bill C-7:An Act respecting the selection of senators and amending the Constitution Act, 1867 in respect of Senate term limits" (October 2012) ("Heard Opinion on Bill C-7") at p. 15, AGQC Record, Vol. V, Tab 36; Standing Senate Committee on Legal and Constitutional Affairs, Report on Bill S-4 at pp.17-18 , AGC Record, Vol. VII, Tab 27
25. Thus, there must be further limits to Parliament's unilateral amending authority under s. 44 beyond those explicitly stated in ss. 41 and 42. The Court can properly look to the overall structure of the Constitution, the context leading to the adoption of the amending provisions of the Constitution Act, 1982, and its own previous jurisprudence, in> particular the Upper
House Reference, in defining the limits and scope of Parliament's authority under s. 44.
Response to the Reference Questions A. Elections (Reference Questions 2 and 3)
26. Questions 2 and 3 concern the introduction of elections into the process for selecting Senators. Question 2 references Bill C-20, which provided for federally-administered, socalled "consultations" to be held in conjunction with either a federal or provincial general election. Question 3 references Bill C-7, which contemplates provincial/territorial elections.
27. Newfoundland and Labrador submits that these elections and the legislative proposals to introduce them would fundamentally alter the method of selecting Senators. Pursuant to s. 42(l)(b) amendments to the Constitution in relation to "the method of selecting Senators" can only be made pursuant to the "7/50" amending procedure in s. 38(1). Such matters fall outside the exclusive legislative authority of Parliament under either s. 91 of the Constitution
Act, 1867 or s. 44 of the Constitution Act, 1982.
(i) Purpose and Effects of the Draft Legislation
28. In order to answer these two reference questions, it is necessary to understand the purpose and intended effects of the legislative proposals as well as the actual practical consequences that would ensue if they were enacted. Such an analysis reveals the true nature of the draft legislation. This is the same approach this Court has adopted in determining the pith and substance of a law in the context of a division of powers analysis. 9
Reference re Securities Act, 3 S.C.R 837 ("Securities Reference") at para. 63-64, AGNL Authorities, Tab 7
29. It is then necessary to ascertain the meaning of "the method of selecting Senators" in s. 42(l)(b) of the Constitution Act, 1982 in order to detennine whether the draft legislation, in substance, constitutes such an amendment and is therefore outside the nnilateral authority of Parliament.
30. In detennining the purpose(s) of a law, it is appropriate for courts to examine the statute itself as well as relevant extrinsic evidence that is not inherently unreliable. This includes the legislative history, such as Parliamentary debates and speeches, fonnal statements by members of the Government, and government reports and publications. 10 A careful review of these bills, including their legislative history, reveals that their purpose is to transfom1 the Senate into an elected body.
31. A close examination of the text and how these bills would operate in practice, particularly when the influence of the foundational constitutional principle of democracy is considered, demonstrates that they would in fact fundamentally change the way in which Senators are selected.
(li) Purpose of the federal proposals is to transform the Senate into an elected body
32. Since first fonning the government in 2006, the Harper government has introduced a series of bills to make changes to the Senate. Throughout this time, Senatorial elections have been a key and consistent component of these proposals.
33. In his appearance before the Senate Special Committee on Senate Refonn in September 2006, Prime Minister Harper made clear his govennnent's intention to introduce legislation to create an elected Senate in the following comments: As yet another step in fulfilling our commitment to make the Senate more effective and more democratic, the government hopefully this fall, will introduce a bill in the House to create a process to choose elected senators. (p.S)
R. v. Morgentaler, 3 S.C.R. 463 at pp. 484-5, AGNL Authorities, Tab 1
We desire a national process for electing senators rather than a province-byprovince process. I view the Senate properly structured as a national institution, not a federal institution, not a provincial institution. There is no doubt to change the process in a formal constitutional sense - to making senators elected - would require provincial consent. The government would be seeking to have the ability to consult the population before make Senate appointments. Obviously, this is an interim step of democratization but we think it would be an important one. (p. 13) There are still nine vacant seats for senators. I do not intend to appoint senators, unless necessary. But I can tell yon that the government intends to table a legislation to create an elected Senate. (p. 14) As I mentioned earlier, the proposed legislation the government will bring forward is obviously by necessity permissive in nature. It allows the government of the day not just to create elected senators, but to evaluate how that is affecting the system and what is happening; and it will occur over a period of time. (p. 18) (emphasis added) 11
34. On April 20, 2007, in moving second reading of Bill C-43, the predecessor to Bill C-20, the Minister of State (Democratic Renewal), Peter Van Loan, said in the House of Cormnons: Bill C-43 will do more than enable Canadians to have their say about the representatives who will be making decisions on their behalf here in Ottawa. It also guarantees that those representatives will be accountable for the decisions they make. Consulting the Canadian public on Senate appointments will help to boost the Senate's legitimacy in the eyes of Canadians by transfonning it into a more modern, more democratic, and more accountable institution that reflects the core values of Canadians . . .. Ultimately, of course, we know that fundamental reform of the Senate will require complex, lengthy and multilateral constitutional change. There does not exist, sadly, at present, the national consensus or will required to engage in the inevitably long and potentially contentious rounds of negotiations that would be involved . ... In conclusion, Bill C-43, the Senate Appointments Consultations Act, will strengthen and revitalize the very values that define us as Canadians, values such as democracy and accountability in government. indeed, it extends to Canadian the most fundamental right of all, the right to vote, by advancing the principle that Canadians should have a say in who speaks for them in the Senate.
11 Proceedings of the Special Senate Committee on Senate Reform, September 7, 2006, Issue No.2 at pp.8-18 , AGNL Authorities, Tab 12
The government believes that Canadians should have that right. Bill C-43 not only allows Canadians to indicate who they would like to represent them; it ensures that the people they select are required to account for their actions. 12
35. On October 16, 2007, when Bert Brown was sworn in as a Senator, the Prime Minister's Office issued a press release referring to him as Canada's "second elected Senator" and stating that "[tJhe swearing-in of Senator Brown today reflects our government's conviction that Canadians must have a direct say in who will represent them in the Red Chamber."J3
36. Bill C-43 died on the order paper at prorogation, but its proposal was re-introduced with some modifications as Bill C-20 on November 13, 2007. Appearing before the House of Commons Conunittee hearings into Bill C-20, Minister Van Loan summarized the problems which the bill was intended to address: As Members of Parliament, I am sure we can all agree that it is utterly absurd for the members of the unelected, unaccountable Senate to have power nearly equal to the elected, accountable House of Parliament that we are all members of, the House of Commons. This is not healthy for the Senate, it's not healthy for democracy in the 21 st century. That's why we introduced two bills to create a modem and accountable Senate that is consistent with modem and contemporary democratic values, principles and traditions. Our hope, obviously, is that we can salvage the Senate by introducing a democratic element that has been absent until now by asking Canadians who they want to represent them. 14
37. Bill C-7, the Senate Reform Act, was introduced on June 11, 2011. On second reading, Democratic Reform Minister Tim Uppal again identified the problem which the bill was intended to remedy as "the democratic deficit". 15 During second reading debates, Parliamentary Secretary Kellie Leitch stressed the commitment of the Prime Minister to appoint the winners of provincial Senate elections:
House of Commons, Debates, April 20, 2007, pp. 8478-9, AGNL Authorities, Tab 10 Press Release, Prime Minister's Office, October 16,2007, AGQC Record, Vol. IV, Tab 27 14 House of Commons, Legislative Committee on Bill C-20, Evidence, March 5, 2008, at pp. 1,5-6, AGNL Authorities, Tab 11 15 House of Commons, Debates, September 30, 2011 at p. 1706, AGQC Record, Vol. IV, Tab 28
The Prime Minister has always been clear that his preference is to appoint senators chosen by the voters, and he is committed to respecting the results of any democratic consultation with voters. 16 38. This legislative history, including repeated formaL statements by the Prime Minister and other members of the Government, demonstrate a clear, express and consistent intention to transform the Senate into an elected body and to do it by means of the legislative proposals currently under review.
(iii) The federal proposals would fundamentally change the method of selecting Senators
39. The current process for selecting Senators is made up of two essential steps. By virtue of a longstanding constitutional convention, the Prime Minister exercises unfettered discretion to recommend to the Governor General the appointment of qualified persons to become Senators. The Governor General then accepts these recommendations and summons these qualified persons to the Senate pursuant to s. 24 of the Constitution Act, 1867.
40. Bill C-20,17 referenced in Question 2, provides for the holding of what it terms "consultation of the electors of one or more provinces in relation to the appointment of senators to represent those provinces". Notwithstanding this terminology, the processes provided for by Bill C-20 are fundamentally in the nature of elections.
41. They would be initiated by order of the Governor in Council and held in conjunction with a federal or provincial general election, and would have all of the procedural attributes of an election. Individuals wishing to put themselves forward as Senate nominees would have to file nomination papers in accordance with legislated requirements. Nominees could be endorsed by political parties. The Bill includes provisions addressing: rights of nominees; official agents and auditors; procedural aspects of voting; the counting of votes (by a preferential system) and the method of determining the list of selected nominees; advertising
House of Commons, Debates, September 30, 2011, p. 1725, AGPEI Record, Tab 12, p. 224 Bill C-20, Senate Appointment Consultations Act, AGC Record, Vol. I, Tab 4
rules; contribution rules; and enforcement of the legislation. Significant components of the
Canada Elections Act are made applicable under the bill.
42. Question 3 concerns provincial/territorial elections as set out in Bill C_7. 18 Section 3 of that bill states that if a province or territory enacts legislation substantially in accordance with the framework set out in the schedule, the Prime Minister "must consider names from the most current list of Senate nominees selected for that province or territory."
43. The schedule provides a framework for provincial/territorial elections to determine the list of Senate nominees for that province/territory. This framework is virtually identical to the legislative framework for elections for the House of Commons or a provincial legislature. From the perspective of a provincial or territorial elector, the process would appear exactly the same. The only difference is that the election winners would be placed on the list of Senate nominees rather than directly assuming their seat. Section I of the schedule provides that Senators to be appointed for a province or territory "should be chosen" from that list.
44. Thus, Bill C-7 not only authorizes elections in respect of Senate vacancies, but imposes clear obligations on the Prime Minister and Governor General with respect to the winners of these elections. The wording of the bill states that the winners of these elections "must be considered" and "should be" appointed.
45. The effect of this bill would be to substitute the unfettered discretion of the Prime Minister to recommend appointments to the Senate to the Governor General with a legislative direction that the winners of these elections should be appointed.
46. The langnage "should be" creates a clear presumption in favour of appointing the election winners. The legislation does not identifY any exceptions to the principle of appointing election winners. In the face of this statutory langnage, only exceptional circumstances would justifY departure from that presumption. Professor Andrew Heard suggests that the only principled reason for departing from this presumption would be if there were some serious
Bill C-7, Senate Refonn Act, AGC Record, Vol. I, Tab 2
defect in the individual's ability or qualification to sit as a Senator, for example, serious mental or physical incapacity or being convicted of a serious offence. 19
47. The provincial/territorial opt-in natuJ:e of Bill C-7 would also result in the anomalous situation that the process for selecting Senators could be changed in some provinces and territories, but not others. This would lead to variable extension of the franchise across the country and an "inequality of democracy", and would stand in stark contrast to the right of
every citizen of Canada to vote in elections for Parliament and the legislative assemblies
entrenched in s. 3 of the Charter.
48. A process containing a legislated direction to the Prime Minister as to whom (s)he should appoint is fundamentally different from one in which the Prime Minister has unfettered discretion. This is particularly the case when one considers the nature of the process by which the Senate nominee has been identified - an election administered in accordance with democratic rules.
49. Professor Heard has convincingly rejected the suggestion that these elections are mere consultations or solicitations of opinion similar to referenda. He writes: These descriptions of [Bill C-20 and C-7 as] consultations rather than elections are completely inaccurate from my perspective as a political scientist. [... ] The processes envisioned in Bill C-7, and already practiced in Alberta, is clearly not a referendum consultation. In a referendum or plebiscite, voters choose between public policy alternatives. In an election, voters select representatives [authorities referenced]. The ultimate purpose of the electoral processes conducted under C-7 is to allow voters to choose their Senators. By definition this is an election. 2o 50. The legislated principle that the election winners should be appointed would be reinforced in practice by the unwritten constitutional principle of democracy which was identified by this Court in the Secession Reference as one of the fundamental values in our constitutional law and political culture. 21
Opinion on Bill C-7 at p. 44-45, AGQC Record, Vol. V, Tab 36 Heard Opinion on Bill C-7 at p. 36, AGQC Record, Vol. V, Tab 36 Secession Reference at para. 61, AGNL Authorities, Tab 7
51. If the electors of a province or territory choose nominees in an electoral process conducted in accordance with all of the usual rules designed to ensure that the true will of the electorate prevails, it would be antithetical to the principle of democracy not to respect the results of those elections.
52. The assertion that the Prime Minister's discretion would be unconstrained by these elections is unsustainable. The actions of a Prime Minister who did not respect the results of these elections would undermine the principle of democracy. How could it possibly "make the Senate into a more democratic institution" to grant a right to vote to the electors, and then disregard their clear message as to who they want to have representing them in the Senate? This wonld be a very hollow conception of democracy.
53. Over time, the proposed legislation and the democratic principle would resnlt in the progressive entrenchment of a rule that only in the most exceptional circumstances shonld the Prime Minister depart from appointing the elected nominees. Such a rule would acquire the status of a constitutional convention, replacing the current convention that the Prime Minister has unfettered discretion to recommend Senate appointments to the Governor General. Thus, the actual operation of the proposed legislation would fundamentally change the process by which Senators would be selected.
(iv) "the method of selecting Senators" in s. 42(1)(b)
54. Section 42(1) lists matters in relation to which constitutional amendments can only be made in accordance with the s. 38(1) amending procedure. One of those matters is "the method of selecting Senators" (s. 42(1)(b». This gives rise to two key questions - (1) What is the meaning of "the method of selecting Senators" in s. 42(1)(b)? and (2) Would the bills in question, in substance, constitute amendments to the Constitution?
55. The meaning of "method of selecting Senators" in s. 42(1)(b) should be ascertained in accordance with the direction in the Manitoba Language Rights Reference that the Court
"cannot take a narrow and literal approach to constitutional interpretation" and that "the jurisprudence of this Court evidences a willingness to supplement textual analysis with historical, contextual and purposive interpretation in order to ascertain the intent of the makers of our Constitution.,,22
56. The text, context and a purposive approach all point to an interpretation that this phrase was intended to capture the process by which individuals are chosen to be Senators.
57. The plain meaning of the words chosen supports this interpretation. The Canadian Oxford
Dictionary23 defines these terms as follows:
"method" - a mode of procedure; a defined or systematic way of doing a thing; "selection" - the act of selecting; "select" - choose, especially as the best or most suitable. 58. Pursuant to Bill C-20 or C-7, the driving force of the process to select Senators would become elections held in a systematic manner pursuant to legislation. A plain language reading ofs. 42(1)(b) therefore clearly suggests that these bills would change "the method of selecting Senators".
59. The historical context against which these bills have been proposed also supports this interpretation. Over the years, a wide range of proposals to change the process for selecting Senators have been put forward. All of these proposals have gamered the attention and views of the Provinces. The breadth of the proposals considered was the backdrop against which the broad language "method of selecting Senators" was agreed to and adopted. It is logical to conclude that this language was intended to capture the full range of potential changes to the selection process for Senators.
60. The overarching purpose of s. 42(1) is to identifY certain matters that were agreed to be of sufficient importance to the provinces as to require compliance with the s. 38(1) amending
Re:Manitoba Language Rights, 1 S.C.R. 721 at p. 751, AGNL Authorities, Tab 3 Canadian Oxford Dictionary, 2nd ed. (Oxford University Press, 2004) at pp. 975, 1406, AGNL Authorities, Tab 9
procedure. The process by which it is detennined who will represent a province in the Senate, the body designed to represent regional and provincial interests in the federal legislative process, is of fundamental importance to the provinces. As this Court stated in the
Upper House Reference, "To make the Senate a wholly or partially elected body would affect
a fundamental feature of that body".24 A purposive interpretation therefore also supports the conclusion that Bill C-20 and C-7 would change the "method of selecting senators".
61. The Attorney General of Canada asserts that Bills C-20 and C-7 do not engage s. 42(l)(b) because they would not fonnally amend s. 24 of the Constitution Act, 1867. This argument fails to recognize that the substantive effect of these bills would be to unilaterally change the method of selecting Senators, and places such changes beyond the constitutional reach of the Provinces. This would be contrary to intention of the framers of Part V, and in particular, s. 42(l)(b) and 38(1). This type of change was intended to engage the "7/50" amending procedure.
62. This Court has consistently emphasized the importance of focusing on substance over form in characterizing legislation for constitutional purposes. The clearest example of this approach is the pith and substance doctrine. In seeking to identify the pith and substance or "essential character" of the law, the process of characterization is not a technical fonnalistic exercise confined to the strict legal operation of the statute. The court is concerned with purpose of the law as well as the effects in order to ascertain its dominant characteristic or "main thrust". 25
63. The importance of not allowing fonn to obscure substance also underlies the related "colourability" doctrine. This doctrine is invoked when a statute bears the fonnal trappings of a matter within jurisdiction, but in reality is directed to a matter outside jurisdiction. As tIns Court stated in Morgentaler (1993), " ... fonn alone is not controlling in the detennination of
24 Upper House Reference at p. 77, AGNL Authorities, Tab 2 "Securities Reference at para. 63, AGNL Authorities, Tab 7
constitutional character ... the court will examine the substance of the legislation to determine what the legislature is really dOing.,,26
64. The substantive . analysis of the proposed legislation conducted above demonstrates that
Parliament would really be changing the method of selecting Senators without following the constitutionally mandated process for such changes.
(v) The federal bills are not authorized under s. 91 ("POGG")
65. Parliament's authority to enact legislation for the peace, order and good government of Canada is a residuary power to enact ordinary legislation. It does not include authority to amend the Constitution.
66. Parliament's power to enact legislation for the peace, order and good government of Canada
should not be construed so as to circumvent the requirements for provincial consent prescribed by the constitutional amending provisions.
67. It is not within Parliament's power under s. 91 of the Constitution Act, 1867 to enact legislation which is, in substance, an amendment in relation to any of the subject matters identified in the provisions of Part V as requiring the consent of one or more provinces. To conclude otherwise would subvert the amending provisions in Part V and the intent of the framers of those provisions.
68. It camlot be that Parliament can accomplish by ordinary legislation that which it is expressly precluded from doing by the Constitution. Sections 42(1) and 38(1) of the Constitution Act, 1982 expressly preclude Parliament from unilaterally making changes to the Constitution in relation to certain matters, including significant aspects of Senate. The opening words of s. 91 of the Constitution Act, 1867 should not be read as granting Parliament mlilateral
R. v. Morgentaler, 3 S.C.R. 463 at p. 496, AGNL Authorities at Tab 1. See also: Re Upper Churchill Water Rights Reversion Act, 1 S.C.R. 297 at p. 332, AGNL Authorities, Tab 5; Ward v. Canada, 1 S.C.R. 569 at para. 17, AGNL Authorities, Tab 8
authority to effect those same changes, and put them beyond the reach of the provinces, by means of ordinary legislation. The election procedures contained in Bill C-20 and C-7 engage the constitutional amending procedures, in particular the requirements of the "7/50" amending procedure pursuant to s. 42(1)(b) and s. 38(1).
Term Limits (Reference Qnestion 1)
69. The length of tenure of Senators is established in s. 29 of the Constitution Act, 1867. Senators were originally appointed for life. The Constitution was amended in 1965 such that Senators now hold their place until the age of seventy-five. The proposals contained in Question 1 would require amendments to s. 29 and thus would constitute amendments to the Constitution of Canada.27
(i) Term limit proposals are interrelated with Senate election proposals
70. The federal government has consistently presented proposals on term limits and Senate elections as part of a package of changes to the Senate. The proposals to introduce terrn limits for Senators were initially introduced as companion bills to the Senate election bills. Most recently, Bill C-7, which is currently before Parliament, combines both term limits and elections in a single bill.
71. Although separated into two reference questions (Questions 1.(a),(f) and 2), Parliament's constitutional authority to enact the entirety of Bill C-7 is before the Court on this Reference.
n. Where the
constitutionality of particular provisions of a statute is challenged, the proper
approach is to focus on the constitutionality of those provisions, read in the context of the statute as whole. Where an integrated scheme is challenged, the Court must analyze the entirety ofthe scheme from a constitutional perspective. 28
Constitution Act, 1965, S.C. 1965, c. 4, AGC Record, Vol. II, Tab 12 Securities Reference at para. 91, AGNL Authorities, Tab 7
73. Tenn limit proposals have consistently been an integral component of the federal government's proposals for Senate refonn. They have been justified on the same basis as the proposals for Senate elections - to increase the democratic legitimacy and accountability of the Senate.
74. If the federal government's rationale for elections is to increase democracy and accountability in the Senate by seeking the views of the electorate as to who should represent them, that same rationale would also point to holding such elections and implementing their results at regular, defined intervals.
75. Tenn limits therefore go hand in hand with elections in the federal government's proposed legislation and its rationale. It is thus artificial to consider the constitutionally required procedure to make changes to the tenn length for Senators in isolation from the constitutional procedure required to introduce Senate elections. They are both integrally related to changing the method of selecting Senators, a matter governed by the "7/50" amending procedure pursuant to ss. 42(1)(b) and 38(1).
(li) Changes to term length could impair the powers of the Senate
76. The Attorney General of Canada's argument is that since "tenn limits" are not listed in s. 42, Parliament can make constitutional amendments in relation to them pursuant to s. 44. The logic of this argument would apply with equal force regardless of the length of the tenn proposed.
77. In the Upper House Reference, this Court said in respect of changes to the tenure of Senators: At present, a senator, when appointed has tenure until he attains the age of seventy-five. At some point, a reduction in the tenn of office might impair the functioning of the Senate in providing what Sir John A. Macdonald described as "the sober second thought in legislation".29
Upper House Reference at p. 76, AGNL Authorities, Tab 2
78. At a certain point, tenn lengths could be so short as to impair the ability of Senators to exercise their powers and discharge their duties in a meaningful way. Significantly shortened tenns and the resultant high turnover of Senators could also impair the overall continuity of the Senate as an institution.
79. A reduction in the tenn of office that "impaired the functioning of the Senate in providing the sober second thought in legislation" would affect the powers of the Senate. One of the key duties and powers of the Senate is to review and vote on proposed legislation. If the tenn length of Senators was so short that it impaired the Senate's ability to properly discharge this fundamental duty, the powers of the Senate would be significantly compromised as was contemplated in the Upper House Reference. 80. Thus, at some point, reductions in the tenn length of Senators would constitute an amendment in relation to "the powers of the Senate", which pursuant to s. 42(1)(b) can only be effected in accordance with the s. 38(1) amending procedure.
81. The point at which tenn limits might have such an impact on the powers of the Senate is difficult to predict. The fact that there is a significant risk that reducing tenn lengths could affect the powers of the Senate suppOlis tlle conclusion that a change to tenn length is a matter that comes within the scope of s. 42(1) as a constitutional amendment that can only be made pursuant to the "7/50" amending procedure.
(ill) Renewable Terms (Reference Question
82. Question l.(e), which proposes legislation providing for a renewable tenn for Senators as set out in Bill S-4, raises an additional constitutional concern - that renewable tenns could impair the independence of the Senate, its ability to act as "a chanlber of sober second thOUght" and its effectiveness in providing representation of provincial and regional interests. Such impainnent would fundanlentally affect the powers of the Senate, a matter reserved to the "7/50" anlending procedure pursuant to s. 42(1)(b) and s. 38(1).
83. This concern was considered as early as the debates leading up to Confederation. The Honourable George Brown stated in the Legislative Assembly in 1865: Suppose you appoint them for nine years, what will be the effect? For the last three or four years of their term they would be anticipating its expiry, and anxiously looking for re-appointment; and the consequence would be that a third of the members of the Senate would be under the influence of the executive. 3o 84. The Standing Senate Committee on Legal and Constitutional Affairs on Bill S-4 heard from many experts in relation to this concern and concluded that the prospect of re-appointment, where tenns were renewable at the sole discretion of the Prime Minister, "conld significantly undermine the independence of Senators, and therefore the Senate as a whole.,,31
85. The Senate was conceived of as means of providing effective representation of provincial and regional interests and "a chamber of sober second thought in legislation". Impairment of this mandate would constitute a change to the powers of the Senate.
86. In conclusion, when the term limit proposals are properly assessed in the context of, and in conjunction with, the related election proposals, it becomes clear that they would work together to fundamentally alter the "method of selection of Senators". Moreover, aspects of the term limit proposals have the potential to affect the "powers of the Senate". Pursuant to s. 42(1)(b), amendments in relation to "the powers of the Senate and the method of selecting Senators" are subject to the "7/50" amending procedure in s. 38(1).
Abolition of the Senate (Reference Questions 5 and 6)
87. Qnestion 5 asks whether the Senate could be abolished pursuant to s. 38 by any of three listed methods. Qnestion 6 asks, in the event that abolition could not be accomplished pursuant to s.
30 Province of Canada, Legislative Assembly, Parliamentary Debates on the Subject of the Confederation of the British North American Provinces, 8th ParI., 3,d Sess. (February 8, 1865), p. 90, (president of the Couincil George Brown), AGON Record, Tab 7 31 Standing Senate Committee on Legal and Constitutional Affairs, Report on Bill S-4 at p. 10, AGC Record, Vol. VII, Tab 27, p. 109
38, whether the unanimous consent procedure of s. 41 is applicable. Taken together, these two questions in essence ask, "What is the constitutionally required level of provincial consent to abolish the Senate?"
88. Newfoundland and Labrador submits that abolition of the Senate could only be constitutionally effected pursuant to unanimous consent. Abolition of the Senate would strike at the entire structure of the Constitution and therefore demands the highest level of consent.
An analysis of the text of Part V of the Constitution Act, 1982, interpreted and applied by
reference to the structure of the Constitution as a whole, including the foundational underlying constitutional principles, compels this conclusion.
89. Abolition of the Senate is not expressly contemplated in Part V of the Constitution Act, 1982, nor anywhere else in the written texts of the Constitution. To the contrary, the Senate has been woven through the fabric of the Constitution since the original Confederation compact.
It has been a defining feature of our constitutional framework.
90. The continned existence of the Senate is presupposed in those aspects of the Senate explicitly made subject to the "7/50" amendment procedure in s. 38(1). Other provisions of Part V, most clearly s. 41(e), demonstrate the degree to which the Senate is embedded in our constitutional structure and the very amending processes themselves.
91. Abolition of the Senate is not the only matter to which the amending provisions of Part V do not speak specifically. As this Court observed in the Secession Reference, " ... the Constitution is silent as to the ability of a province to secede from Confederation.,,32
92. An understanding of the centrality of the Senate to Canada's constitutional structure necessitates a review of the history of the formation of the Canadian union and the foundational principles around which our Constitution is organized.
Secession Reference at para. 84, AGNL Authorities, Tab 6
(i) Creation of the Senate was Essential to Confederation
93. Agreement on the Senate was essential to the achievement of Confederation. This Court has previously traced the events leading up to Confederation and emphasized the importance of the discussions and ultimate agreement on the Senate, including its key characteristics, to the formation of the Canadian union. 33 94. The agreement emerging from the Charlottetown Conference of September 1864, which formed the basis for Confederation, was snl1l1l1arized by this Court in the Secession
Reference as follows:
The salient aspects of the agreement may be briefly outlined. There was to be a federal union featuring a bicameral central legislature. Representation in the Lower House was to be based on population, whereas in the Upper House it was to be based on regional equality, the regions comprising Canada East, Canada West and the Maritimes. The significance of the adoption of a federal form of government caunot be exaggerated. Without it, neither the agreement of the delegates from Canada East nor that of the delegates from the maritime colonies could have been obtained. 34
95. At the Quebec Conference the following month, considerable time was occupied in discussing provisions related to the Senate. Professor Andrew Heard has sUl1l1l1arized the key features of the Senate that emerged from those discussions and debates: Canada's upper house was modeled on the UK House of Lords as an unelected body. As in the UK, the Senate was intended to provide 'sober second thought' in the legislative process, to counterbalance ill-conceived measures emanating from the elected lower house. [... J Unlike the House of Lords, Senate membership was allocated on a territorial basis, to provide equal representation of 24 Senators to the then three regions of Canada, Quebec, Ontario, and the Maritime Provinces. This regional representation was then expanded in 1915 to include a fourth equal sized division for the Western provinces. This sectional representation is thought of as a foundational element of Canada's federal system (Janet Ajzenstat, 'Bicameralism and Canada's Founders: The Origins of the Canadian Senate' in Serge Joyal (ed.), Protecting Canadian Democracy: The Senate You Never Knew,
Upper House Reference at pp. 66-67, AGNL Authorities, Tab 2; Secession Reference at para. 35-41, AGNL Authorities, Tab 6 34 Secession Reference at para. 37, AGNL Authorities, Tab 6
Montreal: McGill-Queen's Press, 2003, pp. 3-30). The importance of the Senate to the confederation bargain is underlined by the fact that over half of the confederation debates were devoted to discussing the Senate (Andre Bernard, La vie politique au Quebec et au Canada, Sainte -Foy: Les Presses de l'Universite du Quebec, 1996, p. 27).35
96. In the Upper House Reference, this Court quoted the following excerpts from speeches delivered in the debates on Confederation in the parliament of the province of Canada by Sir Jolm A. Macdonald and the Honourable George Brown as illustrative of the important purpose of the Senate in the proposed union: Sir John A. Macdonald: In order to protect local interests and to prevent sectional jealousies, it was found requisite that the three great divisions into which British North America is separated, should be represented in the Upper House on the principle of equality. There are three great sections, having different interests, in this proposed Confederation ... To the Upper House is to be confided the protection of sectional interests: therefore is it that the three great divisions are there equally represented for the purpose of defending such interests against the combinations of majorities in the Assembly. Parliamentary Debates on the Subject of the Confederation of the British North American Provinces, Quebec, 1865, pages 35 and 38. The Honourable George Brown: But the very essence of our compact is that the union shall be federal and not legislative. Qur Lower Canada friends have agreed to give us representation by popUlation in the Lower House, on the express condition that they shall have equality in the Upper House. Qn no other condition could we have advanced a step; and, for my part, I am quite willing they should have it. In maintaining the existing sectional boundaries and handing over the control of local matters to local bodies, we recognize, to a certain extent, a diversity of interests; and it is quite natural that the protection for those interests, by equality in the Upper Chamber, should be demanded by the less numerous provinces. Parliamentary Debates on the Subject of the Confederation of the British North American Provinces, Quebec, 1865, p. 88. 36
Heard Opinion on Bill C-7 at p. 7, AGQC Record, Vol. V, Tab 36 Upper House Reference at pp. 66-67, AGNL Authorities, Tab 2
97. After considering this historical context, the Court concluded in the Upper House Reference that a primary purpose of the creation of the Senate was to afford protection to the various regional and provincial interests in Canada in relation to the enactment of federal legislation. 37
98. The Court characterized the Senate's role as an institution forming part of the federal system created by the British North America Act (n()w Constitution Act, 1867) as "vital".38
99. All subsequent provinces entered into Confederation in accordance with the fundamental arrangements concerning the Senate that had been established in 1867. Provision was made for representation of each new province in the Senate in accordance with the principle of regional representation. In 1949 the Terms of Union ofNewfoundland with Canada provided that Newfoundland would be represented in the Senate by six members. 39
It is thus evident that the Senate was designed to complement and support Canada's
federal system of govermnent by providing effective representation of the interests of the regions and the provinces. It was a key component ofthe original Confederation compact and remained a key component of the understanding upon which each subsequent province entered Confederation.
The centrality of the Senate to the constitutional framework of Canada was confirmed by
the written provisions of the Constitution Act, 1867 and the unwritten principles it incorporated by reference.
The preamble to the Constitution Act, 1867 is of considerable significance. The first
Ibid. at pp. 67, 78 Ibid. at p. 66 39 Terms of Union ofNewfoundland with Canada, s. 4, Schedule to the British North America Act 1949, now Newfoundland Act, 12-13 Geo. VI, c. 22 (U.K.), Newfoundland Act, AGNL Authorities, Tab 14
Whereas the Provinces of Canada, Nova Scotia and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom: 103. Under the Constitution ofthe United Kingdom, legislative power was and is exercised by
the Queen by and with the advice and consent of the House of Lords and the House of Commons.
This fundamental aspect of the constitutional structure of Canada - a bicameral federal
house - was confinned in s. 17 and 91 of the Constitution Act, 1867. Section 17 provides that: 17. There shall be One Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, and the House of Commons.
Under s. 91, the section defining federal legislative powers, the power to enact federal
legislation was given to the Queen by and with the advice and consent of the Senate and House of Commons. As this Court observed in the Upper House Reference, "Thus, the body which had been created as means of protecting sectional and regional interests was made a participant in the legislative process. ,,40
(li) The Structure of the Constitution, the Amending Provisions and the Unwritten Constitutional Principles
Part V of the Constitution Act, 1982 does not stand as a self-contained code in isolation
from the rest of the Constitution. As this Court held in the Secession Reference: Our Constitution has an internal architecture, or what the majority of this Court in OPSEUv. Ontario (Attorney General), 2 S.C.R. 2, at p. 57, called a "basic constitutional structure". The individual elements of the Constitution are linked to the others, and must be interpreted by reference to the structure of the Constitution as a whole. 41
Upper House Reference at p. 68, AGNL Authorities, Tab 2 Secession Reference, at para. 50, AGNL Authorities, Tab 6
An analysis of the text of the amending provisions of Part V should be undertaken in
conjunction with a recognition of how these provisions interact with the overall structure of the Constitution. 108. The underlying unwritten constitutional principles are an essential part of that overall
structure. This Court has held that it would be "impossible to conceive of our constitutional structure without them. The principles dictate major elements of the architecture of the Constitution itself and as such are its lifeblood.,,42
These principles assist in the interpretation of the text of the Constitution and may in
certain circumstances give dse to substantive legal obligations. They are "not merely descriptive, but are also invested with a powerful normative force, and are binding upon both courts and govermnents.,,43 They have been described by the Court as the "organizing principles" of the Constitution, which the written provisions simply elaborate. They are not only a key to construing the express provisions of the Constitution, but are also the means by which the "underlying logic" of the Constitution can be given the force oflaw. 44
In the Secession Reference this Court characterized the unWlitten principles as "the
foundational principles governing constitutional amendments".45 It is therefore appropdate that in considering a matter as fundamental as the constitutionally required procedure for abolition of the Senate, the Court consider the implications of these principles.
In engaging in the requisite textual and structural constitutional analysis to determine the
applicable procedure for abolition of the Senate, two foundational constitutional principles are of particular relevance. These are the principles of constitutionalism and federalism.
Ibid. at para. 51 Ibid. at para. 54 44 Re Provincial Court Judges, 3 S.C.R. 3 at para. 95, AGNL Authorities, Tab 4 45 Secession Reference at para. 34, AGNL Authorities, Tab 6
Constitutionalism and the rule of law lie at the root of our system of government. The
constitutionalism principle requires that all government action comply with the Constitution. Under our system of constitutional supremacy, the Constitution binds both the federal and provincial governments.
In the Secession Reference, the Court observed the relevance of the constitutionalism
principle to the process of constitutional amendment: Of course, those constitutional rules are themselves amenable to amendment, but only through a process of negotiation which ensures that there is an opportunity for the constitutionally defined rights of all the parties to be respected and reconciled. 46 114. The Court emphasized that the unwritten constitutional principles were the source of the
requirements of the amending provisions: Constitutional amendment often requires some form of substantial consensus precisely because the content of the underlying principles of our Constitution demand it. 47
(iv) Federalism 115. In the Secession Reference, the Court explained the importance of the principle of
federalism to the Constitution and its interpretation:
In interpreting our Constitution, the courts have always been concerned with the federalism principle, inherent in the structure of our constitutional arrangements, which has from the beginning been the lodestar by which the courts are guided.
This underlying principle of federalism, then, has exercised a role of considerable importance in the interpretation of the written provisions of our Constitution. In the Patriation Reference, supra, at pp. 905-9, we confirmed that the principle of federalism runs through the political and legal systems of Canada. Indeed, Martland and Ritchie JJ., dissenting in the Patriation Reference, at p. 821,
Ibid. at para. 76 Ibid. at para. 56-57
considered federalism to be "the dominant principle of Canadian constitntional law". With the enactment of the Charter, that proposition may have less force than it once did, but there can be little doubt that the principle of federalism remains a central organizational theme of our Constitntion. Less obviously, perhaps, but certainly of equal importance, federalism is a political and legal response to underlying social and political realities. 48
In the Securities Reference the Court confirmed that the principle of federalism demands
respect for the constitntional division of powers and "the maintenance of a constitntional balance between federal and provincial powers". 49
Perhaps nowhere is the principle of federalism more important than in the context of
determining the applicable procedure for a constitntional amendment as profound and intertwined with Canada's federal nature as the potential abolition of the Senate.
It is evident that the principle of federalism underlay the creation of the Senate in Canada.
Internationally, conceptions of federalism also underlie the existence of upper houses in the vast majority of federations worldwide. As Professor Ronald Watts wrote in 2008: ... of some 25 federations in the world today, only five do not have federal second chambers: these are the United Arab Emirates, Venezuela, and the three small island federations (each with less than a million in total population) of Comoros, Micronesia, and st. Kitt's and Nevis. Virtually all others, although in varied forms, have found a federal second chamber desirable for at least two functions: legislative review and the inclusion of distinctively regional views in the federal decision-making process. 50 119. The constitntionally required process to effect the elimination of the Senate should pay
equal respect to the principle of federalism to that upon which its creation was based.
48 Ibid. at para. 56-57; Re Resolution to Amend the Constitution, 1 S.C.R. 753 at pp. 905-909 ("Patriation Reference"), AGC Authorities, Tab 20 49 Securities Reference at para. 61, AGNL Authorities, Tab 7 50 Rouald Watts, Bill C-20: Faulty Procedure aud Iuadequate Solution (Testimouy Before the Legislative Committee on Bill C-20, House of Commons, 7 May, 2008) in Jennifer Smith (ed.), The Democratic Dilemma: Reforming the Canadian Senate (Montreal & Kingston: McGill-Queen's University Press, 2009 ) p. 61, AGNL Authorities, Tab 13
(v) Section 38(1) not the appropriate procedure
Section 42(1) addresses particular changes to the Senate whose impact would fall well
short of that of abolition. Amendments in relation to these matters are expressly made subject to the s. 38(1) amending procedure. The aspects of the Senate referenced by s. 42(1) (method of selection of Senators, powers of the Senate and regional representation) all presuppose the continued existence of the Senate. This must particularly be considered the case when the amending provisions are considered in relation to the overall structure of the Constitution and the integral place of the Senate in that structure.
Abolition is a change to Canada's constitutional structure of a different order of
magnitude than changing the paliicular characteristics of the Senate. The very existence of the Senate is a fundamentally different "matter" from variation of its features, particularly when considered in light of its historical origins and intended role within Canada's constitutional structure.
As Professor Watts' comparative analysis demonstrates, while federal second chambers
assume many varied forms, their existence is virtually universal in federations, particularly in federations of a similar size and composition as Canada.
Abolition is not appropriately reduced to the sum of a series of amendments pursuant to s.
38(1) to alter - in fact, to eliminate - the characteristics of the Senate. Such a formalistic exercise fails to capture the profound nature and implications of abolition for Canada's constitutional structure.
Section 41(e): Abolition of the Senate would require amendment to Part V of the Constitution Act, 1982
The Senate is anchored in our constitutional history and embedded in our present-day
constitutional structure. Nowhere is this more clear than in the amending provisions of Part V of the Constitution Act, 1982 themselves.
Sections 38, 41, 42 and 43 (the "7/50" amending procedure, the "unanimous consent
provision", and the procedure applicable to "amendments affecting some but not all provinces") all expressly require a resolution of the Senate as a part of the amending procedure they estab!ish.
Pursuant to s. 46, the procedure for an amendment under any of these sections may be
initiated by the Senate, the House of Commons or a legislative assembly of a province.
Section 47 provides that the House of Connnons may adopt a second resolution after 180
days if "the Senate has not adopted a resolution". Like the other provisions of Part V, this section presupposes the existence of the Senate and emphasizes the importance of its role by providing that the House of Commons cannot proceed for a full 180 days without a resolution of the Senate.
Section 44 grants authority to "Parliament" to make laws effecting certain amendments to
the Constitution, thus engaging the role of the Senate as a constituent part of Parliament. Section 47 does not apply to section 44 amendments. There is no provision in the Constitution for a s. 44 amendment to be made without the law being passed by the Senate.
The above review of the provisions of Part V demonstrates that the Senate is
constitutionally entrenched as a key actor in the amending processes.
Section 41, the provision concerning amendments by unanimous consent, states:
41. An amendment to the Constitution of Canada in relation to the following matters may be made by proclamation issued by the Governor General under the Great Seal of Canada only where authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province:
(a) the office of the Queen, the Governor General and the Lieutenant Governor of a province;
(b) the right of a province to a number of members in the House of Commons not less than the number of Senators by which the province is entitled to be represented at the time this Part comes into force; (c) subject to section 43, the use of the English or the French language; (d) the composition of the Supreme Court of Canada; and (e) an amendment to this Part. (emphasis added)
Abolition of the Senate would significantly alter the amending procedures of Part V.
Abolition would by necessity remove the Senate, a key actor, from the constitutional amending processes. This would have to be reflected in the Constitution itself. Section 41 (e) requires that such amendments be made in accordance with the unanimous consent procedure.
The Attorney General of Canada argues that s. 41(e) does not apply because abolition of
the Senate "would not constitute, in pith and substance, an attempt to amend Part V of the
Constitution Act, 1982" and that the changes to the amending procedures would be merely
"incidental" to the Senate's abolition. 51
This argument disregards one of the most important implications of abolition of the
Senate. The legal and practical effects of abolition of the Senate on the amending procedures would be highly siguificant. The Senate, a key constitutional actor in the amending processes, would be completely eliminated. This cannot be dismissed as a merely incidental impact.
The process for amending a constitution lies at the very heart of the constitution. While
the Constitution establishes the essential legal framework within which all other legal rules and institutions of government must operate, the amending procedures determine how those basic rules can be changed and who can change them. It is hard to conceive of any significant change to those amending procedures, let alone one as profound as the elimination of a key constitutional actor in those procedures, as "incidental".
AGe Factum at para. 153
Subsection (e) was included in section 41 with some of the most fundamental elements of
our constitutional framework. It is a reflection of the imp01tance with which the amending procedures were regarded by the federal government and the provinces in 1982,.that after the protracted and arduous negotiations in pursnit of an amending formula that adequately reflected Canada's federal nature, it was agreed that any changes to that formula would require unanimous consent.
The Attorney General of Canada also asserts that there would be no need to amend Part V
and that any references to the Senate that remained in Part V could simply be regarded as spent. This argument falls sh01t for several reasons. First, it fails to recognize that the abolition of the Senate would, in substance, amend Part V even if the references to the Senate remained in the text. A formalistic argument that attempts to avoid the clear implications of abolition of the Senate on the amending provisions should not be allowed to prevail, particularly where the amending provisions would be effectively amended to such a significant extent. Second, Canada relies on the abolition of the upper house of the Quebec Legislature as a precedent, however this change took place prior to 1982 and the introduction ofs. 41(e). Finally, where there is no principled reason not to do so, such significant changes to our constitutional structure should be accurately reflected in the constitutional text.
In conclusion, an analysis of the text of Part V, properly placed in its historical and
constitutional context, compels that the constitutionally required procedure for the abolition of the Senate would be one of unanimous consent of Parliament and the provincial legislatures.
PART IV - COSTS
The Attorney General of Newfoundland and Labrador does not seek any costs in this
Reference and requests that no costs be awarded against him.
PART V- ORDER SOUGHT
The Attorney General of Newfoundland and Labrador submits that questions I(a)-(g), 2,
and 3 should be answered in the negative. All of these potential changes to the Senate can only be accomplished pursuant to the "7/50" amending procedure in s. 38 of the Constitution
Act, 1982. With respect to abolition of the Senate, the correct procedure would be the
unanimous consent procedure in s. 41. Accordingly all parts of question 5 should be answered in the negative and question 6 in the affirmative.
The Attorney General of Newfoundland and Labrador seeks to present oral argument at
the hearing of this Reference.
Dated this 23rd day of August, 2013
Barbara G. Barrowman
Counsel for the Attorney General of Newfoundland and Labrador
PART VI - TABLE OF AUTHORITIES
Cases R. v. Big M Drug Mart, 1 S.C.R. 295 R. v. Morgentaler, 3 S.C.R. 463 Re Authority ofParliament in Relation to the Upper House, 1 S.C.R. 54 Re: Manitoba Language Rights,  1 S. C.R. 721 Re Provincial Court Judges,  3 S.C.R. 3 Re Resolution to Amend the Constitution, 1 S.C.R. 753 Re Upper Churchill Water Rights Reversion Act, 1 S.C.R. 297 Reference re Secession of Quebec, 2 S.c.R. 217 Cited at paragraph
17 30,63 18-91,60,77,93 96-98,105 14,55 109 115 63 16-17,50,91,93-94, 106-110, 113-115 28,62,72, 116 63
Reference re Securities Act, 3 S.C.R. 837 Ward v. Canada, 1 S.C.R. 569
Other Canadian Oxford Dictionary, 2nd ed. (Oxford University Press, 2004) at pp. 975, 1406
House of Commons, Debates, April 20, 2007, pp. 8478-9 House of Commons, Legislative Committee on Bill C-20, Evidence, March 5, 2008, at pp. 1, 5-6
Proceedings of the Special Senate Committee on Senate Reform, September 7, 2006, Issue No.2, pp. 8-18
118 Ronald Watts, Bill C-20: Faulty Procedure and Inadequate Solution (Testimony Before the Legislative Committee on Bill C-20, House of Commons, 7 May, 2008) in Jennifer Smith (ed.), The Democratic Dilemma: Reforming the Canadian Senate (Montreal & Kingston: McGill-Queen's University Press, 2009 )
Terms of Union ofNewfoundland with Canada, s. 4, Schedule to British North America Act 1949, now Newfoundland Act, 12-13 Geo. VI, c. 22 (U.K.)
PART VII - LEGISLATION
Bill C-7, AGC Record, Vol. I, Tab 2 Bill S-4, AGC Record, Vol. I, Tab 3 Bill C-20, AGC Record, Vol. I, Tab 4
Appendix A Reference Questions 1.
In relation to each of the following proposed limits to the tenure of Senators, is it within the legislative authority of the Parliament of Canada, acting pursuant to section 44 of the Constitution Act, 1982, to make amendments to section 29 of the Constitution Act, 1867 providing for
a fixed term of nine years for Senators, as set out in clause 5 of Bill C-7, the Senate Reform Act; a fixed tenn of ten years or more for Senators; a fixed term of eight years or less for Senators; a fixed term of the life of two or three Parliaments for Senators; a renewable term for Senators, as set out in clause 2 of Bill S-4, Constitution Act, 2006 (Senate tenure); limits to the terms for Senators appointed after October 14, 2008 as set out in subclause 4(1) of Bill C-7, the Senate Reform Act; and retrospective limits to the terms for Senators appointed before October 14, 2008?
(b) (c) (d) (e)
Is it within the legislative authority of the Parliament of Canada, acting pursuant to section 91 of the Constitution Act, 1867, or section 44 of the Constitution Act, 1982, to enact legislation that provides a means of consulting the population of each province and territory as to its preferences for potential nominees for appointment to the Senate pursuant to a national process as was set out in Bill C-20, the Senate Appointment Consultations Act? Is it within the legislative authority of the Parliament of Canada, acting pursuant to section 91 of the Constitution Act, 1867, or section 44 of the Constitution Act, 1982, to establish a framework setting out a basis for provincial and territorial legislatures to enact legislation to consult their population as to their preferences for potential nominees for appointment to the Senate as set out in the schedule for Bill C-7, the Senate Reform Act? Is it within the legislative authority of the Parliament of Canada, acting pursuant to section 44 of the Constitution Act, 1982, to repeal subsections 23(3) and (4) of the Constitution Act, 1867 regarding property qualifications for Senators? Can an amendment to the Constitution of Canada to abolish the Senate be accomplished by the general amending procedure set out in section 38 of the Constitution Act 1982, by one of the following methods:
by inserting a separate provision stating that the Senate is to be abolished as of a certain date, as an amendment to the Constitution Act, 1867 or as a separate provision that is outside the Constitution Acts, 1867 to 1982 but that is still part of the Constitution of Canada; by amending or repealing some or all of the references to the Senate in the Constitution of Canada; or by abolishing the powers of the Senate and eliminating the representation of provinces pursuant to paragraphs 42(l)(b) and (c) of the Constitution Act, 1982?
If the general amending procedure set out in section 38 of the Constitution Act, 1982 is not sufficient to abolish the Senate, does the unanimous consent procedure set out in section 41 of the Constitution Act, 1982 apply?
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